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1839.

MILLS

v.

FOWKES.

tended on the authority of Meggot v. Mills, and Dawe v. Holdsworth (a), that it ought to be applied to the more burdensome of the two debts: but it is sufficient to say that, notwithstanding the doubt expressed by the Master of the Rolls in Clayton's case, the general current of authorities is the other way, establishing that where the debtor omits to make an appropriation, the creditor may appropriate the payment to the earlier debt whether he should do that within any limited time, it is not necessary to decide here, because there has been no unreasonable delay; the more correct view, however, seems to be, that the creditor is not limited in point of time. The Plaintiff therefore is entitled to judgment for 15%.

:

ERSKINE J. I agree in the opinion which has been pronounced on both points. The case of Tippets v. Heane shews that, in order, by part payment, to take a debt of the operation of the statute, the payment should be made on account of that particular debt: the reason is, that the payment is taken as an acknowledgment, and therefore the intention of the party making it is material. Here there were two debts; one for which the debtor could be sued, the other for which he could not; if we look to his intention, the probable inference is, that he meant to apply it to the debt for which he was liable to be sued, and that is the meaning of the cases of Meggott v. Mills, and Dawe v. Holdsworth. I think therefore that the payment did not restore the Plaintiff's right to sue for the older debt.

But if the debtor does not expressly apply the payment to the more recent debt, the law gives the creditor the right to apply it to the older: and the creditor would apply it to the older debt for the very reason

(a) Peake N. P. C. 64.

which leads the debtor to apply it to the more recent. On this point, therefore, our judgment must be in favour

of the Plaintiff for 157.

Judgment for Plaintiff accordingly.

1839.

MILLS

บ.

FOWKES.

WILLIS V. HALLETT.

May 4.

sole Plaintiff before action

THE declaration in this case stated that the Defendant The bankwas indebted to the Plaintiff for goods sold and ruptcy of a delivered; and the Defendant, being under terms of pleading issuably, pleaded first, nunquam indebitatus; is an issuable and, secondly, that after the debt accrued, and before plea.

the action was commenced, the Plaintiff became a bank

rupt: whereupon,

The Plaintiff signed judgment, on the ground that the second was not an issuable plea.

Hayes, having obtained a rule nisi to set aside such judgment as irregular,

Wilde Serjt., shewed cause, on an affidavit, that the debt had been assigned by the Plaintiff to one Smith before the bankruptcy, and did not pass under the Plaintiff's commission, and that Smith had since died, leaving the Plaintiff his executor. According to Staples v. Holdsworth (a) and Wettenhall v. Graham (b), the bankruptcy or insolvency of the Plaintiff are not issuable pleas; and Waterfall v. Glode (c) and Serle v. Bradshaw (d) establish that, where a Defendant is under terms of pleading issuably, if one of several pleas pleaded

(a) 4 New Cases, 144.
(b) Ibid. 714.

(c) 3 T. R. 305.
(d) 2 Cr. & Mees. 148.

1839.

WILLIS บ.

HALLETT.

by him be not issuable, the Plaintiff is entitled to sign

judgment.

Hayes. In Staples v. Holdsworth, the Defendant pleaded the bankruptcy of one of several Plaintiffs after the action commenced: that bankruptcy could not have prevented the merits of the cause from being tried, or have exposed the Defendant to be called on to pay the debt over again, because the other Plaintiffs would be entitled to recover it: but here, if the Defendant's plea be true, he might, after satisfying the Plaintiff, be called on to pay the debt to the Plaintiff's assignees. The Court would not determine on affidavit, whether or not the debt passed under the commission.

TINDAL C. J. This case is distinguishable from Staples v. Holdsworth, in which there were several Plaintiffs, and the bankruptcy pleaded as to one did not take place till after the action had commenced: here, there is but one Plaintiff, and the bankruptcy took place before the action; and we cannot say that a plea of bankruptcy is not, on the face of it, an issuable plea. The rest of the Court concurred.

Rule absolute.

May 6.

In an
of trespass
against ma-

action

gistrates for turning

THIS

HEARSEY V. PECHELL and Others.

HIS was an action of trespass against certain magistrates, for executing a warrant under which the Defendant had been turned out of a cottage in which

Plaintiff out of a cottage, at the instance of parish officers who claimed the premises as part of the poor-house, the Court refused to call on Plaintiff to give security for costs, on the ground that the action had been instigated and encouraged by a third person, who had petitioned the House of Lords on the subject, and had thrown out expressions of a determination to see Plaintiff reinstated.

he had resided for some years. The warrant had been granted at the instance of the parish officers of Ambersham South, who claimed the cottage as part of the poor-house of the tithing in which it stood; alleged that the Plaintiff had occupied it as a pauper by their permission; and extruded him under the provisions of 59 G. 3. c. 12. s. 24.

The Plaintiff had been much countenanced in the claim he made to the property by Mr. John Webster Wood, who petitioned the House of Lords in his favour, and, upon being there referred to the courts of justice, wrote several letters to the parish officers, in one of which he said, "I will not shrink from any step I may have taken in the affair, and, while trial by jury exists, I fear no one, and, if personally insulted, will spare no expense in my defence: the cause I have considered a public, not a private one:" in another," If you will send the title-deeds of the cottage, or prove to the satisfaction of Mr. Rodgers that the property belongs to the parish, Hearsey will give no further trouble." He afterwards sent the Plaintiff to Rodgers, the attorney who conducted the cause, and said he would see the Plaintiff through the House of Lords.

On affidavit of these facts,

Wilde, Serjt., obtained a rule calling on the Plaintiff to shew cause why proceedings should not be staid until security for costs should be given, either by the Plaintiff or by Mr. Wood.

In Tenant v. Brown (a), where, in trespass against parish officers for distraining for poor-rates, it appeared that the Plaintiff refused to pay the rate by the desire of his landlord, who was also the attorney in the cause, the Court stayed the proceedings until he gave security for costs.

(a) 5 B. & C. 208.

1839.

HEARSEY

บ.

PECHELL.

1839.

HEARSEY

บ.

PECHELL.

Erle and Knowles shewed cause on affidavits, setting forth the nature of Hearsey's claim, stating that Rodgers was not the attorney of Wood, and had never seen him before Hearsey's action was commenced; and that Wood had no pecuniary interest in the cause, but stirred in it solely on public grounds. The poverty of the Plaintiff had been repeatedly held no ground for requiring security for costs. M'Cullock v. Robinson (a),

Morgan v. Evans. (b)

In Tenant v. Brown, the landlord, who was also the attorney of the Plaintiff, had a direct pecuniary interest in the result of the cause, and had stimulated the Plaintiff not to pay the rate for which the parish officers distrained on him.

Wilde. Although Wood has no pecuniary interest, the Plaintiff may be called on to give security if this be in effect Wood's action: and that it is such, either from private or public motives, the facts disclosed sufficiently evince. It is manifest the house in question belongs to the parish.

TINDAL C. J. We are not called on to decide whether this house be the property of the Plaintiff or of the parish, for, though we may form an opinion of our own from the affidavits, the Plaintiff has a right to go before a jury.

The real question is, whether this is the action of the Plaintiff, or substantially the action of Mr. Wood.

If it were an action which the Plaintiff would not have brought but for the instigation and countenance of Wood, the case would fall within the principle of Tenant v. Brown, and another case in the Court of King's Bench, where a master was compelled to pay costs for

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